BIR Ruling No. 254-14

June 30, 2014 BIR RULING NO. 254-14 Section 30 (G), of the Tax Code of 1997, as amended; RMO No. 20-2013; RMC No. 76-2003; RR No. 13-98; BIR Ruling No. 206-2013; BIR Ruling No. 535-2012; BIR Ruling No. 108-2011; BIR Ruling No. 080-2011; BIR Ruling No. 060-2011; BIR Ruling No. 052-2011 Team Energy Foundation, Inc. S-501 CTC Building, 2232 Roxas Blvd., Pasay City Attention: Roderick F. De Castro Executive Director Gentlemen : This refers to your letter dated October 1, 2013, as indorsed by the OIC Regional Director of Revenue Region No. 8, Makati City, requesting for a certificate of tax exemption on behalf of TEAM ENERGY FOUNDATION, INC. pursuant to Section 30 (G) of the National Internal Revenue Code (NIRC) of 1997, as amended. It is represented that TEAM ENERGY FOUNDATION, INC., with business address at S-501 CTC Building, 2232 Roxas Boulevard, Pasay City and BIR Taxpayer's Identification No. (TIN) 207-453-050-000 and Certificate of Registration No. OCN9RC0000213444, is a civic league or organization not organized for profit but operated exclusively for the promotion of social welfare duly organized and existing under the laws of the Philippines, registered with the Securities and Exchange Commission (SEC) under Registration No. A200010925 dated November 12, 1996; and that among the purpose or purposes for which it was incorporated are the following: 1. To promote, support, and undertake local and national community development programs and project designed to help improve the quality of life of families and contribute to enhance economic development in the country; 2. To create, establish, organize and maintain centers, institutions, and programs which will allow access to health services and educational opportunities; 3. To foster partnerships with communities, non-government organizations (NGO), government agencies, and international organizations to work towards advancing social development in the country; CcTIDH 4. To receive and/or give grants, gifts, legacies, donations, contributions, endowments, and financial aids or loans from any sources whatsoever, and to make use of them in operating enterprises, activities and business as may be necessary to carry out the objectives of the Foundation, with no part of the income inuring to the benefit of any member, trustee, individual or entity; and 5. Generally to do all things, transact such business, exercise such powers and authority as may be directly or indirectly necessary, suitable, or proper for the accomplishment of any of the purposes or the attainment of any or more of the objects herein enumerated or which shall appear at any time conductive to, or expedient for the Foundation; it being expressly understood, however, that the property and income of the Foundation shall be used, in accordance with the applicable rules and regulations, exclusively for the furtherance of the purpose enumerated herein or related thereto with no part of such property or income inuring to the benefit of or distributable to the members, trustees, or any other individual or entity. It is further expressly understood that in the event of dissolution, the assets of the Foundation would be distributed to another corporation or association created or organized exclusively for similar purposes as the dissolved corporation or to the Government for a public purpose or as a competent court of justice would distribute to accomplish the general purpose for which the dissolved corporation was organized. In support of its request, TEAM ENERGY FOUNDATION, INC. submitted the following documentary requirements as prescribed under Revenue Memorandum Order (RMO) No. 20-2013 , n dated July 22, 2013: 1) Letter-application for tax exemption; 2) Certified true copy of the Certificate of Registration with the SEC; 3) Certified true copy of the Amended Articles of Incorporation which includes the following provisions: a. That the corporation is non-stock, non-profit; b. That the primary purpose for which it was created is one of those enumerated under Sec. 30 (E) of the Tax Code of 1997, as amended; c. That no part of the net income shall inure to the benefit of any of its members; d. That the trustees do not receive any compensation; and SHTEaA e. In case of dissolution, assets of the corporation shall be transferred to a similar institution or to the government. 4) SEC Certified true copy of the Amended By-Laws; 5) Certification under oath by the Executive Director of the Foundation as to: (i) all previous amendments/changes in the Articles of Incorporation and By-laws; (ii) manner of activities, and (iii) the sources and disposition of income; 6) Certification under oath by the Treasurer of the Foundation as to the amount of income, compensation, salaries or any emoluments paid by the Foundation to its trustees, officers and other executive officers; 7) Certification issued by RDO No. 51, Pasay City, that the Foundation is not the subject of any pending investigation, on-going audit, pending tax assessment, administrative protest, claim for refund or issuance of tax credit certificate, collection proceedings, or a judicial appeal; 8) SEC/BIR Certified true copies of the Annual Information Return and Financial Statements for at least three (3) years of operation; 9) Certification under oath by the Executive Director of the Foundation as to its modus operandi which includes the following: 1) A full description of the past, present, and proposed activities of the Foundation; 2) A narrative description of the Foundation's contemplated expenditures; and 3) A detailed description of all revenues which it seeks to be exempted from Income Tax. 10) BIR certified true copy of the Foundation's Certificate of Registration; 11) Certificate of Registration with the Philippine Council for NGO Certification (PCNC); and 12) Affidavit of Non-Forum shopping. In reply, please be informed as follows: aHSAIT Income Tax Section 30 (G) of the 1997 Tax Code, as amended, provides, viz. : "Sec. 30. Exemptions from Tax on Corporations. The following organizations shall not be taxed under this Title in respect to income received by them as such: xxx xxx xxx (G) Civic league or organization not organized for profit but operated exclusively for the promotion of social welfare; . . ." The Supreme Court, in the case of Commissioner of Internal Revenue vs. St. Luke's Medical Center, Inc. [G.R. No. 195909 and G.R. No. 195960, September 26, 2012], declared: ". . . [T]o be exempt from taxes, Section 30 (G) of the NIRC requires that the institution be "operated exclusively" for social welfare. However, the last paragraph of Section 30 of the NIRC qualifies the words "organized and operated exclusively" by providing that: Notwithstanding the provisions in the preceding paragraphs, the income of whatever kind and character of the foregoing organizations from any of their properties, real or personal, or from any of their activities conducted for profit regardless of the disposition made of such income, shall be subject to tax imposed under this Code. In short, the last paragraph of Section 30 provides that if a tax exempt charitable institution conducts "any activity for profit, such activity is not tax exempt even as its not-for-profit activities remain tax exempt. This paragraph qualifies the requirements in Section 30 (E) that the "[n]on-stock corporation or association [must be] organized and operated exclusively for . . . charitable . . . purposes . . . . "It likewise qualifies the requirement in Section 30 (G) that the civic organization must be "operated exclusively" for the promotion of social welfare." In interpreting the term "exclusive" as used in the provision, the Supreme Court, citing the case of Lung Center of the Philippines vs. Quezon City (G.R. No. 144104, June 29, 2004), held: " [e]xclusive " is defined as possessed and enjoyed to the exclusion of others; debarred from participation or enjoyment ; and "exclusively" is defined, "in a manner to exclude; as enjoying a privilege exclusively." . . . The words "dominant use" or "principal use" cannot be substituted for the words "used exclusively" without doing violence to the Constitution and the Law. Solely is synonymous with exclusively." AaEDcS TEAM ENERGY FOUNDATION, INC. falls within the purview of an organization/association contemplated under the above cited provision of law. Accordingly, it is exempt from the payment of income tax received by it as such organization. However, it is subject to the corresponding internal revenue taxes imposed under the National Internal Revenue Code on its income derived from any of its properties, real or personal, or any activity conducted for profit regardless of the disposition thereof, which income should be returned for taxation. (BIR Ruling No. 206-13 dated June 13, 2013 and BIR Ruling No. 535-12 dated August 29, 2012) Likewise, interest income from currency bank deposits and yield or any other monetary benefit from deposit substitute instruments and from trust funds and similar arrangements, and royalties derived from sources within the Philippines are subject to the 20% final withholding tax: Provided, however, that interest income derived by it from a depository bank under the expanded foreign currency deposit system shall be subject to 7 1/2% final withholding tax pursuant to Section 27 (D) (1) in relation to Section 57 (A), both of the Tax Code of 1997, as amended. It should be understood that the said exempt corporation/association shall be constituted as a withholding agent for the government if it acts as an employer and its employees receive compensation income subject to the withholding tax under Section 79 (A), Chapter XIII, Title II of the Tax Code of 1997, as implemented by Revenue Regulations (RR) No. 2-98, as amended, or if it makes income payments to individuals or corporations subject to the withholding tax pursuant to Section 57 of the Tax Code of 1997, also as implemented by Revenue Regulations No. 2-98, as amended. (BIR Ruling No. 080-11 dated March 15, 2011) Value-Added Tax Moreover, the tax exemption granted to it as a non-stock, non-profit corporation under Section 30 of the Tax Code of 1997 covers only income taxes for which it is directly liable. Section 105 of the Tax Code of 1997 provides that any person who, in the course of trade or business, sells, barters, exchanges, leases goods or properties, renders services, and any person who imports goods shall be subject to the value-added tax (VAT) imposed in Sections 106 to 108 of the same Code. The phrase "in the course of trade or business" means the regular conduct or pursuit of a commercial or an economic activity, including transactions incidental thereto, by any person regardless of whether or not the person engaged therein is a non-stock, non-profit private organization (irrespective of the disposition of its net income and whether or not it sells exclusively to members or their guests), or government entity. Accordingly, if TEAM ENERGY FOUNDATION, INC. is engaged in the sale of goods or services in the course of a business pursuit, including transactions incidental thereto, in general, it shall be liable for VAT. (BIR Ruling No. 060-11 dated March 4, 2011) ETAICc Notwithstanding that it is a non-stock, non-profit corporation, its purchase of goods or properties or services and importation of goods shall nevertheless be subject to the 12% VAT pursuant to Sections 106 to 108 of the said Code. (BIR Ruling No. 052-11 dated February 25, 2011) It should be noted that VAT is an indirect tax payable by the seller and not by the purchaser of goods. However, being an indirect tax, it can be shifted or passed on to the buyer/purchaser, transferee or lessee of the goods, properties or services. Once shifted to the buyer/customer as an addition to the cost of goods or services sold, it is no longer a tax but an additional cost which the buyer/customer has to pay in order to obtain the goods or services. Thus, the shifting of the VAT to it does not make it the person directly liable and therefore, it cannot invoke its tax exemption privilege under Section 30 of the Tax Code of 1997 to avoid the passing on or shifting of the VAT. Revenue from contributions and donations, not being derived from sale of services or sale of goods made in the course of business but rather in connection with its non-stock, non-profit activities, is exempt from the 12% VAT. Donor's Tax In as much as TEAM ENERGY FOUNDATION, INC. is a social welfare organization, donations to it are exempt from the payment of donor's tax pursuant to Section 101 (A) (3) of the Tax Code of 1997, as amended, subject to the condition that not more than thirty percent (30%) of said gift shall be used for administration purposes. Deductibility of Donation Section 3 of RR 13-98 provides: SEC. 3. Donations to Accredited Non-stock, Non-profit Corporations/NGOs. Donations to accredited non-stock, non-profit corporations/NGOs shall be entitled to the following benefits: (1) Limited Deductibility. Donations, contributions or gifts actually paid or made within the taxable year to accredited non-stock, non-profit corporations shall be allowed limited deductibility in an amount not in excess of ten percent (10%) for an individual donor, and five percent (5%) for a corporate donor, of the donor's income derived from trade, business or profession as computed without the benefit of this deduction. HCTAEc (2) Full Deductibility. Donations, contributions or gifts actually paid or made within the taxable year to accredited NGOs shall be allowed full deductibility, subject to the following conditions: (i) The accredited NGO shall make utilization directly for the active conduct of the activities constituting the purpose or function for which it is organized and operated, not later than the fifteenth (15th) day of the third month after the close of the accredited NGOs taxable year in which contributions are received, unless an extended period is granted by the Secretary of Finance, upon recommendation of the Commissioner. For this purpose, the term "utilization" shall have the meaning as defined under Sec. 1 (c) of these Regulations. (ii) The level of administrative expenses of the accredited NGO, shall, on an annual basis, not exceed thirty percent (30%) of the total expenses for the taxable year. (iii) In the event of dissolution, the assets of the accredited NGO, would be distributed to another accredited NGO organized for similar purpose or purposes, or to the State for public purpose, or purposes, or would be distributed by a competent court of justice to another accredited NGO to be used in such manner as in the judgment of said court shall best accomplish the general purpose for which the dissolved organization was organized. (iv) The amount of any charitable contribution of property other than money shall be based on the acquisition cost of said property. (v) All the members of the Board of Trustees of the non-stock, non-profit corporation, organization or NGO do not receive compensation or remuneration for their service to the afore-mentioned organization. Furthermore, Section 1 (a) of Revenue Regulations No. 13-98 provides that: a) "Non-stock, non-profit corporation or organization" shall refer to a corporation or association/organization referred to under Section 30 (E) and (G) of the Tax Code created or organized under Philippine laws exclusively for one or more of the following purposes: HTSAEa 1. religious; 2. charitable; 3. scientific; 4. athletic; 5. cultural; 6. rehabilitation of veterans; and 7. social welfare. no part of the net income or asset of which shall belong to or inure to the benefit of any member, organizer, officer or any specific person. b) "Non-government Organization (NGO)" shall refer to a non-stock, non-profit domestic corporation or organization as defined under Section 34 (H) (2) (c) of the Tax Code organized and operated exclusively for scientific, research, educational, character-building and youth and sports development, health, social welfare, cultural or charitable purposes, or a combination thereof, no part of the net income of which inures to the benefit of any private individual. Foregoing considered, donors can avail of the full deductibility only for donations, contributions or gifts actually paid or made within the taxable year to accredited NGOs. Accordingly, for purposes of full deductibility from the taxable business income of its donor, TEAM ENERGY FOUNDATION, INC. must first be accredited with the Philippine Council for NGO Certification, Inc. (PCNC) which has been duly designated by the Secretary of Finance as the Accrediting Entity pursuant to Memorandum of Agreement dated January 29, 1998 executed by and between the Secretary of Finance and PCNC's Interim Chairman. For further inquiries on the accreditation and certification process, please visit PCNC at 6/F, SCC Building, CFA-MA Compound, 4427 Interior Old Sta. Mesa, 1016 Manila or call their office at 715-9594, 715-2756, 782-1568 and 715-2783 (telefax). You may also visit their website: http://www.pcnc.com.ph or email them at [emailprotected]. Moreover, TEAM ENERGY FOUNDATION, INC. is required to file on or before the fifteenth (15th) day of the fourth (4th) month following the end of the accounting period a Profit and Loss Statement and Balance Sheet with the Annual Information Return under oath, stating its gross income and expenses incurred during the preceding period and a certificate showing that there has not been any change in its By-laws Articles of Incorporation, manner of operation and activities as well as sources and disposition of income. (BIR Ruling No. 108-11 dated April 7, 2011) SCIcTD Under Section 235 of the Tax Code of 1997, as amended, any provision of existing general and special law to the contrary notwithstanding, the books of accounts and other pertinent records of tax-exempt organizations or grantees of tax incentives shall be subject to examination by the BIR for purposes of ascertaining compliance with the conditions under which has been granted tax exemptions or tax incentives, and its tax liabilities, if any. Finally. It is subject to the payment of the annual registration fee of PhP500.00 as prescribed in Section 236 (B) of the Tax Code of 1997, as amended. It is also required under Section 6 (C) in relation to Section 237 of the same Code to issue duly registered receipts or sales or commercial invoices for each sale or transfer of merchandise or for services rendered which are not directly related to the activities for which the Foundation is registered. [Revenue Memorandum Circular (RMC) No. 76-2003] It is requested that a copy of this Letter of Exemption be attached to the Annual Information Return. Please note that this tax exemption ruling shall be valid for a period of three (3) years from the date of issue, unless sooner revoked or cancelled. The tax exemption ruling may be renewed upon filing of a subsequent Application for Tax Exemption/Revalidation provided under Revenue Memorandum Order (RMO) No. 20-2013 dated July 22, 2013, otherwise, the exemption shall be deemed revoked upon the expiration of its validity period. This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be disclosed that the facts are different, then this ruling shall be considered null and void. Very truly yours, (SGD.) KIM S. JACINTO-HENARES Commissioner of Internal Revenue n Note from the Publisher: Written as "Revenue Memorandum Circular (RMO) No. 20-2013" in the original document.